Opinion
42299.
SUBMITTED SEPTEMBER 13, 1966.
DECIDED SEPTEMBER 22, 1966.
Condemnation of land. Wayne Superior Court. Before Judge Stephens, Emeritus.
Arthur K. Bolton, Attorney General, Richard L. Chambers, Assistant Attorney General, Robert L. Royal, Deputy Assistant Attorney General, William A. Zorn, for appellant.
W. Glenn Thomas, Jr., Albert E. Butler, for appellees.
1. The motion to dismiss is without merit.
2. Evidence of an unaccepted offer to buy or sell property is not admissible to prove value.
3. Evidence as to the price paid for other property by the condemnor is not admissible to show the value of the property being condemned.
4. A mere general objection to the court's charge is insufficient to present any question for review as to the correctness of the charge.
SUBMITTED SEPTEMBER 13, 1966 — DECIDED SEPTEMBER 22, 1966.
The State Highway Department filed a petition to condemn a tract of land owned by the condemnees and after an award by a special master an appeal was filed and the case proceeded to trial by a jury. Thereafter, a motion for new trial was filed by the condemnor and overruled. The condemnor filed an appeal and the condemnees filed a cross appeal but did not filed an enumeration of error within the time prescribed and the cross appeal has been dismissed. The appellees did however file a motion to dismiss in which they sought to raise the question presented by their cross appeal as well as additional grounds questioning this court's jurisdiction of the appeal.
1. The original order wherein the rule nisi was issued for the appellees to show cause why the appellant's motion for new trial should not be granted was, in the case sub judice, sufficient to act as an order of continuance until the date when the final hearing on such motion was held.
(a) Where a judge emeritus of the superior court presides over the trial of a case he should, under the Act of 1962 (Ga. L. 1962, pp. 547, 549; Code Ann. § 24-2623a), determine any motion for new trial filed in such case, but where he is unable to perform such act "because of death or otherwise" the presiding judge of such court is authorized to hear and determine such motion, and where the hearing on such a motion for new trial is held and ruled upon by the presiding judge of the superior court, all parties being represented, and no objection is made as to the authority of the presiding judge, it will be presumed that the judge emeritus was unable to perform such act and that the presiding judge was authorized to hear and determine such motion.
(b) Under § 2 (a) of the Appellate Practice Act of 1965 as amended (Ga. L. 1966, pp. 493, 494), it is not necessary that the appellant enumerate as error the judgment overruling the motion for new trial in order to confer jurisdiction of the appeal upon this court. Accordingly, the appellees' motion to dismiss must be overruled.
2. In its first enumeration of error the appellant complains that the trial court erred in permitting a witness for the condemnee to testify as to what he was paid for property near that being condemned when he sold it to the condemnor for use as a part of the same project as that being condemned. Under the decision of the Supreme Court in Georgia Power Co. v. Brooks, 207 Ga. 406 ( 62 S.E.2d 183), it was error to admit such evidence and for such reason a new trial must be granted.
3. On the trial of the case Lola Bell Hilliard, one of the condemnees, was permitted to testify over objection that sometime before the condemnation proceedings were instituted they had been offered a certain price for the property but refused it because it was their home. Under the decision in Jones v. Smith, 206 Ga. 162 (6) ( 56 S.E.2d 462), and the cases there cited, such evidence was inadmissible. See also Bowers v. Fulton County, 221 Ga. 731 (7) ( 146 S.E.2d 884).
4. Under the decision in Georgia Power Co. v. Maddox, 113 Ga. App. 642 ( 149 S.E.2d 393), the objection made at the conclusion of the charge was not sufficient to present any question for decision as to the correctness of the charge.
Judgment reversed. Hall and Deen, JJ., concur.